Last night saw an extraordinary confrontation between the defense and the court in the George Zimmerman trial. The defense is seeking to use photos and material from the phone of Martin. The most serious issue is that the defense claims that the government had this material since January and only recently gave it to the defense — another allegation of withholding evidence by the prosecution. The judge and the lawyers are clearly exhausted and I think the schedule is a bit too punishing. I realize that the jury is sequestered and want to go home. However, these days are diminishing the professional ability and clearly the personal restraint of the judge and lawyers alike. While I do not think that the defense should get a few days to rest, I do think that schedule has been unnecessarily demanding and even a few hours of more rest would be in order. I realize the jurors and courts have limited time but I have never agreed with the punishing schedule of many trials. However, I am more concerned with the delay in turning over this evidence until June.
The defense has a valid objection that they are being denied evidence due to the failure of the prosecution to turn over the evidence in a timely manner — to allow for authentication. Judge Debra Nelson clearly does not want to acknowledge the allegation of prosecutorial abuse and then refuses to deal with the objection that the attorneys are exhausted. I think the defense has a valid objection on both the misconduct and the schedule. However, Nelson just walks out on the defense and says that she will deal, not with the allegation of misconduct, but an alleged defense sequestration violation.
Defense attorney, Don West, objects that “I’m not physically able to keep up this pace much longer” as the judge walks out.
The judge has barred the use of a simulation of the scene. However, there are also those text messages on Martin’s phone where he refers to fighting. The prosecution has been able to introduce past comments from Zimmerman, but the court has barred the use of comments from Martin. In this case, she insisted that there was no authentication that it was Martin but the defense noted that they were denied the opportunity to authenticate by the prosecution.
I think most of the rulings in the case have been fair, though I have reservations about some of the excluded evidence and serious reservations about the failure to address the claims of withholding evidence. Judges regularly avoid dealing with such claims in trials, which only encourages prosecutors to game the system by holding on to evidence as long as possible before a trial.
Laserhaas:
I hope what you mean by “finding of Not Guilty would be disasterous” does not mean imply a finding of guild must be made in order to offset terrible events happening in the public. You might be correct in your observation this could occur but we have to not allow an outraged public to dictate a verdict to preserve our justice system. Otherwise, mob rule would dictate outcomes, and there would be a situation where defendants might be “expendable” to quell the rage of the masses.
seamus:
The defense got the phone info on June 4th. Jury selection began on June 10th and opening statements happened on June 20th. Thus the defense had 6 to 16 days to call the recipients of severals texts they wanted to use and either confirm them as coming from Martin or call the recipients and ask them at trial.
How much time do you think the defense should have been accorded to check out the text messages?
At the legal insurrection blog there has been daily coverage of the trial. Posts on that blog are very sympathetic to the defense in general, but also on the scheduling issues. (Or perhaps a better way to put it: the posts can be read as critical of the prosecution).
I don’t see why a judge would push the parties so hard given the stakes here. As an example, the prosecution finished its case at about 5 pm on Friday July 5, but the Judge made the defense call its first witness rather than adjourning for the weekend. I(Other examples can be found at legal insurrection; e.g., time for defense to take a deposition after the Court of Appeals reversed the trial judge on the issue.)
The legal insurrection blog also opined that failure to allow the cell phone information was reversible error (on authentication grounds, but there may be other reasons to keep it out) and, if my quick review of that post was correct, the defense was prepared to provide the “required” authentication.
Maybe the trial lawyers can give some insight on this, but I was surprised that the prosecution requested the 3rd degree murder charge at this late date in the trial. Shouldn’t that have been raised earlier?
These prosecutors are sneaky. I’m sure those who made up their minds on the defendants guilt before the trial even started will approve.
These prosecutors are sneaky bastards.
Malisha;
Concur that there are “stunts” and faux pas by both sides. However, IMO permitting this to go to the jury with questionable (Brady material) releases of items/issues would be ill advised.
A finding of Not Guilty would be disastrous.
Concur mespo727272 – a Mistrial appears to be in order; which would permit the prosecutors office a chance to get it right the 2nd time.
One has to wonder, given the fiduciary responsibility to “get it right” – as to where the mockery of justice prosecutor is really intent on going with this thing! It is piss poor at best.
I’m just sayin………….
My take. If the jury instructions were (for example) to only consider a 2nd degree murder charge I would guess the jury will acquit. If provided with the opportunity for the jury to consider a lesser charge such as manslaughter I feel it is more likely this will be taken. I don’t know if the manslaughter statutes are applicable here from an element base. But if the defense can successfully argue “self defense” it might not be applicable.
Here is part of the Florida manslaughter statute that might be applicable.
782.07(3) A person who causes the death of any person under the age of 18 by culpable negligence under s. 827.03(2)(b) commits aggravated manslaughter of a child, a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084
I didn’t find the definition of “Culpable Negligence” immediately available to me but that might be a factor.
I don’t agree with that the 2nd degree murder statute is easily proven due to the requirement of a “depraved mind” as an element.
One commenter who I watched on Anderson 360 a couple days ago opined if the abuse of child manslaughter resulted as a conviction there is a sentencing enhancement due to the use of a firearm that might result in a sentence up to what would be similar to that of a 2nd degree murder. So essentially the same penalty might be enforced regardless if 2nd degree murder or the manslaughter penalty is the judgement.
Another commenter stated this creates a situation where a jury that is uncomfortable with the original, tougher charge, might elect to issue a finding of guilt on a lesser crime, not fully knowing this could effectvely punish the defendant as severely as if the original charge was made. He also said that it was common on the federal level to include an option for the jury to convict of a lesser crime such as being an “Accessory”. But the federal level essentially treats Accessory the same as a prinicple actor for the purposes of sentencing, which might not necessarily be in alignment to what a federal jury had intended as a punishment. I find that to be rather unfair to a defendant.
If you were to really investigate the things the prosecutors and defense counsel did in this trial you would find that there were about a dozen violations and none of them was significant and the majority of them were by the defense lawyers, not the prosecutors. Every time the defense lawyers were whining about how awful they were being done, it was a case of their misrepresenting things to gain more time. Time was always the issue and it still is. West had plenty of time to authenticate anything that he might have wanted to authenticate — if it was authentic! The problem is, his red herrings are now day old fish. Wrap them in the Orlando Sentinel and throw them out.
I am predicting GUILTY and not because the prosecution did the best job it could have done (it pulled its punches 100 X over), but because the evidence that they take into that room with them shows GUILT.
@RWL: “Does an all white jury let Zimmerman walk for murdering an unarmed black man…”
You know that the trial is to determine if there was a murder. You seem to have reached your own verdict, completely oblivious to the evidence presented. Not guilty? Based on what has been presented at trial, if justice is to be served, I hope so.
laserhaas:
I’m not impressed with these prosecutors either. They object to nothing and let every cockamamie opinion into evidence whether the witness is qualified to render it or not.
Prosecutorial misconduct is verboten (In re Brady, In re Giglio). Fraud on the court by an officer of the court is THE most egregious violation of the due process of law (which is why the U.S. Supreme Court ruled in the case of In re Hazel Atlas Glass v Hartford Empire – that there is NO statute of limitations for such – a ubiquitously adopted premise necessary for the good order of society).
Unfortunately, this means that (at the barest of minimums) – there should be a mistrial – otherwise a certifiable appeals court reverse of the verdict.
There was enough evidence in this case of reckless endangerment resulting in a homicide of an innocent that the prosecutorial incompetence demonstrated thus far was totally unwarranted.
Woe is the day – when George Zimmerman, killer of Trayvon Martin;
gets to walk away!
OS:
I thought that initially and politically that makes sense. Who wants to be the jury that fractures a town? But as time went on I have come to think that the jury wants to do their job. I’d guess a compromise verdict with something for everybody.
randyjet:
My take on the all female jury is mixed. Usually women are more intuitive about motive and intent than men. That may not play well for the defense. Also, women tend to by sympathetic to young people. Another point for the prosecution. Female caucasian jurors may be susceptible the defense’s contention that Martin was a menacing youth and hence the battle to get in the text messages becomes critical. On balance I think it’s a prosecution jury but it’s a weak case of 2nd degree murder based on what I have seen and read. I’m still betting manslaughter.
mespo I have to defer to the opinion of Prof Turley and other legal scholars, and they think the case was overcharged. As an observer I my opinion is that the prosecution has proven bad intent on the part of Zimmerman necessary for 2nd degree murder. Of course, I would like to know why that Zimmerman’s statements over the phone do not establish sufficient evidence for that.
I am beginning to think hung jury. Will they reach a verdict? Who knows? I base my suspicion there might be a hung jury on comments and opinions on blogs like this. Wildly different opinions ranging from murder down to not guilty.
It seems to me there is a lot of outside perssure on all sides of this case to reach a particular outcome. Hopefully this is not influencing the outcome. I would like to think it isn’t.
RWL:
I think there is one seated African American juror.
Strange situation but what I see is the defense playing for time. First, a request for a continuance for “a few days” to authenticate evidence they have had since June 4th. What was that hold up to contact a few witnesses who may or may not have authenticated that Martin was the sender? Then, when that was properly denied (IMHO), it is claimed that both lawyers are exhausted because they have to be in court at 8:00 a.m.the next day. What??? That’s de rigueur in most jury trials. I have never shown up later than two hours before the jury was to be seated. The judge just wants them there an hour before.Finally, I also don’t think the Judge “walked out.” She said at least three times that the proceeding was adjourned but the lawyers kept on talking. What was the judge to do?
The defense did a great job of jury selection since an all woman jury has no good knowledge of fighting and the normal actions of such participants. I have asked a number of friends of mine who are former Marines if they have ever heard ANY participants in a fight cry out for help. Given my personal experience too, I have NEVER heard or done such a thing since I was too busy fighting and throwing blows.
So there is NO question in my mind that the fact is that Martin SAW the gun and cried out twice in horror as he KNEW he was going to DIE. Then immediately the gun shot after the second cry. It makes NO sense for Zimmerman to cry for help when HE has 9mm of help in his hand.
I think he will get off, at worst a manslaughter charge.
Come on JT! Make a prediction. Does an all white jury let Zimmerman walk for murdering an unarmed black man or will he receive a charge of manslaughter, and spend 5 years behind bars (a wanna be cop doesn’t last very long in jail or prison) Make a prediction JT!
My prediction (and I hope that this is wrong): Not guilty on all counts!